Environmental offences - Sentencing considerations

Many environmental offences now carry substantial maximum penalties, often in excess of $1 million. Over the last twenty years, these penalties have increased from only a few thousand dollars.

The Land and Environment Court holds that this reflects a change in the community expectation as to the appropriate penalty.

General sentencing considerations for environmental offences

If a court finds that an environmental offence has been committed, there are a wide
range of factors that it can take into account when determining the appropriate
penalty. The fundamental principle that the Court will apply is to impose a sentence
that it considers proportionate to both the objective circumstances of the offence and
the subjective circumstances of the particular defendant. Specific sentencing
considerations are set out below.

Objective harmfulness and foreseeability of risk of harm to the environment

The court will consider the actual short, medium and long-term environmental harm
caused by the defendant's actions, as well as the potential for harm. For example, if
the defendant's actions cause harmful chemicals to spill into a dry creek bed that is
normally flows into a major waterway, the environmental impact that would have resulted
under normal circumstances may be a relevant consideration.

Defendant's state of mind

Most environmental offences are strict liability offences meaning that the
defendant's state of mind (e.g. chemicals were spilled accidentally not intentionally)
is not relevant to establishing that the defendant is guilty of the offence. Despite
this, stricter penalties will tend to be imposed on defendants that are shown to have
acted intentionally, negligently or recklessly. Particularly where the defendant is a
corporation, the resources and corporate experience of the defendant will also be
relevant in relation to whether they should have secured expert advice that might have
prevented or minimised the environmental harm that occurred as a result of the
offending conduct.

Parity

The approach that the Land and Environment Court of NSW and other courts have taken
in relation to the sentence imposed in comparable environmental offences is a
significant sentencing consideration. When determining an appropriate penalty, many
judges review a large number of prior cases involving similar environmental offences.
This is another reason why obtaining expert legal advice at the earliest possible
opportunity in relation to actual or threatened environmental prosecutions is so
important.

Mitigating factors - guilty plea

The Land and Environment Court will generally apply a discount in penalty of 25
percent if a defendant pleads guilty at the first available opportunity (or shortly
thereafter).

Mitigating factors - other

Other mitigating factors that the Court may take into account include: genuine
contrition and remorse of the defendant, assistance to law enforcement authorities, any
prior convictions, the good character of the defendant, extra-curial punishment (such
as loss of business and reputation as a result of the conviction), even handedness, and
whether the defendant is likely to reoffend.

Sentencing considerations under
specific Acts

National Parks and Wildlife Act 1974

Since the commencement of the National Parks and Wildlife Amendment Act 2010 on 2
July 2010, the specific sentencing considerations under the National Parks and Wildlife
Act 1974, as contained in section 194, are as follows:

the extent of the harm caused or likely to be caused by the commission of the
offence,

the significance of the reserved land, Aboriginal object or place, threatened
species or endangered species, population or ecological community (if any) that was
harmed, or likely to be harmed, by the commission of the offence,

the practical measures that may be taken to prevent, control, abate or mitigate
that harm,

the extent to which the person who committed the offence could reasonably have
foreseen the harm caused or likely to be caused by the commission of the
offence,

the extent to which the person who committed the offence had control over the
causes that gave rise to the offence,

in relation to an offence concerning an Aboriginal object or place or an
Aboriginal area - the views of Aboriginal persons who have an association with the
object, place or area concerned,

whether, in committing the offence, the person was complying with an order or
direction from an employer or supervising employee,

whether the offence was committed for commercial gain

In addition to the above, the court can also consider any other matters that it
considers relevant.

Protection of the Environment Operations Act 1997

The POEO Act sets out the following sentencing considerations (section 241):

the extent of the harm caused or likely to be caused to the environment by the
commission of the offence,

the practical measures that may be taken to prevent, control, abate or mitigate
that harm,

the extent to which the person who committed the offence could reasonably have
foreseen the harm caused or likely to be caused to the environment by the commission
of the offence,

the extent to which the person who committed the offence had control over the
causes that gave rise to the offence,

whether, in committing the offence, the person was complying with orders from an
employer or supervising employee.

In addition to the above, the Court can also consider any other matters that it
considers relevant.

A recent POEO case:

The judge ordered the defendant to pay the
prosecutor's costs of the proceedings, which the prosecutor estimates will exceed
$200,000. That is unsurprising given the extraordinary length of the sentencing
hearing. The prosecutor has also incurred investigation costs in the sum of $13,477.82,
which the judge ordered the defendant to pay pursuant to s 248 of the POEO Act.

The defendant submitted that his liability for a large costs order should be taken
into consideration with a commensurate reduction in the amount of the fine to be
imposed. The judge did not accept the submission.

where to next?

If you suspect that you may be under investigation, or if you have been charged with an offence, it is vital to get competent legal advice as early as possible. Our lawyers are highly specialised in corporate crime and will be able to guide you through the process while dealing with the various authorities related to your matter.